⇒ The common law provides a means by which individuals can challenge the legality of decisions, acts and omissions done by public bodies (judicial review).

⇒ So far, we have identified two different bases or ‘grounds’ for such review:

• 1) Illegality;
• 2) Irrationality (Wednesbury unreasonableness)

⇒ Proving that a body has acted irrationally is hard - and indeed harder when it comes to certain public bodies with broad discretion or who enjoy the implicit or explicit support of Parliament (R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986])

⇒ Wednesbury review does at least provide some protection against arbitrary decision or decisions that seem so illogical, immoral, or contrary to a common law notion of rights.

• We see this in R (Daly) v Secretary of State for the Home Department [2001] (searches of prison cells in the absence of the prisoner, where legally privileged correspondence is kept)

⇒ In this case, the court undertook a review of the policy in question on two separate grounds:

• 1) On Wednesbury grounds (this was looked at in the notes on irrationality);
• 2) On proportionality grounds under the Human Rights Act.

⇒ The outcome in Daly was that the rule on prison cell searches was both irrational on Wednesbury grounds and disproportionate on Human Rights Act grounds; in Daly there was no difference between the two different approaches. If the Human Rights Act yields the same result in Daly, it begs the question: why does administrative law need the Human Rights Act?

• Lord Bingham, giving the leading speech in Daly said: “In this instance… the common law and the Convention yield the same result. But this need not always be so.” [23].

⇒ If proportionality review under the Human Rights Act may provide a different outcome on occasions, the implication perhaps is that the Human Rights Act can go further—perhaps much further—than common law Wednesbury review

• Wouldn’t that stray into merits review? Wouldn’t we be asking the courts to put themselves in the position of the decision-maker?
• Lord Steyn, giving a concurring speech, thinks not: “The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary… the respective roles of judges and administrators are fundamentally distinct and will remain so.”

⇒ Previous notes have already looked at this Act, but in relation to statutory interpretation and declarations of incompatibility vis-à-vis Acts of Parliament

• In other words, the previous notes looked at the affects the Act has on the court’s relationship with Parliament. But Parliament can’t be judicially reviewed - so the focus now is elsewhere

⇒ Section 1 provides the relevant ‘Convention rights’ applicable to the Act. All the main ones are there:

• Articles 2 – 12, and 14 ECHR;
• Articles 1 – 3 of the First Protocol ECHR;
• Article 1 of the Thirteenth Protocol.

⇒ So these are the Convention rights that are given domestic effect in the domestic courts.

⇒ The basis for a claim in judicial review against a public body is provided for by ss. 6-9

• Section 6 provides for the grounds.
• Section 7 provides for the proceedings.
• Section 8 clarifies what remedies might be available.
• Section 9 deals with the review of judicial acts (e.g. of inferior courts).

⇒ S.6(1):“It is unlawful for a public authority to act in a way that is incompatible with a Convention right.”

⇒ S.6(2) precludes liability where the public authority couldn’t have acted differently because of primary legislation, or where they could not have acted in a rights-compatible way for the same reason

⇒ s.6(3) defines a ‘pubic authority’ as “any person certain of whose functions are functions of a public nature…” → it excludes parliament, but includes courts and tribunal

⇒ s.6(5) “In relation to a particular act, a person is not a public authority by virtue only of s.6(3) if the nature of the act is private.”

⇒ S.7(1): “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) may:

• (a) Bring proceedings against the authority under this Act in the appropriate court or tribunal, or
• (b) Rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act”

⇒ s.7(3): “If the proceedings are brought on an application for judicial review, the applicant is to be taken to have sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.” → so this is the standing requirement in HRA claims

⇒ s.8(1): “In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”

⇒ s.8(3): “No award of damages is to be made unless, taking account of all the circumstances of the case… the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.”

⇒ Section 9 deals with the liability of the courts: decisions of courts may be reviewed under the Act, but only where the court is amenable to judicial review, or on the usual basis for appeal.

⇒ A judicial act done in good faith (but unlawfully under s.6(1)) cannot give rise to liability except where the claimant’s liberty has been deprived unlawfully, as provided for by Article 5(5) ECHR

⇒ Not all the rights in the ECHR are treated the same by the courts: some rights are better protected than others

⇒ Some rights are absolute, whilst others are qualified. Some rights may also be derogated from, whilst others cannot

• A right is qualified if it may lawfully be infringed
• A right is derogable if it may lawfully be suspended from having legal effect.
• For example, article 3 (prohibition of torture) is a unique right because it is both unqualified and non-derogable → this means it cannot be lawfully infringed, nor can it be suspended in times of war or other public emergency

⇒ The wording of rights will determine whether they are qualified or not. Article 15 ECHR states which rights are non-derogable.

• This is important to note, because the basis for carrying out a judicial review of an act or omission will be different depending on the right that is invoked
• For instance, Article 3 ECHR is an absolute right: so the courts will intervene whenever torture is done by the State or its actors
• But when we adjudicate on rights that are qualified (Articles 8-11 ECHR), the situation is different - we undertake proportionality review. This is because the State may lawfully (including under the HRA) infringe upon some of your rights
• Let’s look at an example…

⇒ Article 8 is one of the qualified rights in the ECHR and reads as follows:

• 8.1: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
• 8.2: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

⇒ Paragraph 1 of Article 8 conveys the basic right

⇒ Paragraph 2, however, qualifies the right → it says that the State may infringe upon the right where:

• 1) They do so in a way prescribed for by law, or in accordance with law
• 2) The infringement is ‘necessary’ in pursuit of competing interests or rights (the second of the two objections in Daly)

⇒ Whether an infringement of a right is ‘necessary’ or not requires the court to consider whether the measure is proportionate

• The next set of notes look at proportionality in more detail, but for now think of proportionality as a type of substantive evaluation where competing interests (the right of the State or the rights of others v the Convention right of the claimant) are weighed up against each other

⇒ Often proportionality review will involve appraising whether the legislative objective is an important one, whether the measures adopted are ‘rationally connected’ to the legislative objective, and whether the means adopted are no more than what is necessary to achieve the legislative objective

• Often it would involve the courts looking at the options a decision-maker had before them, and assessing whether the decision-maker chose the one that meets the objective—but no more

⇒ Evidently proportionality review is a more thorough and sophisticated form of review than Wednesbury review.

• With Wednesbury review, the emphasis is on the outrageous and the arbitrary
• With proportionality review, the emphasis is on a weighing up of interests
• There will be times when the public body has acted unlawfully under the HRA, but has fallen short of Wednesbury unreasonableness

⇒ Proportionality appears to encompass those cases that Wednesbury review would cover, and more!

⇒ However, there are good reasons for retaining Wednesbury review:

• 1) Not all claims in judicial review invoke a qualified right; as such proportionality review is not available in these cases
• 2) If the Human Rights Act were to be repealed, what basis would there be for judicial review on substantive (rather than jurisdictional or procedural) grounds?